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1 George Clinton v. Will Adams et al Doc. 0 1 GRODSKY & OLECKI LLP Allen B. Grodsky (SBN John Metzidis (SBN 01 Wilshire Blvd., Ste. 0 Santa Monica, California (phone.1.1 (fax allen@grodsky-olecki.com john@grodsky-olecki.com Attorneys for Defendants Adams, Pineda, Gomez, Ferguson, will.i.am music, inc. and Tab Magnetic, Inc. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 1 GEORGE CLINTON, an individual, v. Plaintiff, WILL ADAMS, p/k/a will.i.am, individually and d/b/a WILL.I.AM MUSIC PUBLISHING, an individual; ALLAN PINEDA, p/k/a apl.de.ap, individually and d/b/a JEEPNEY MUSIC PUBLISHING, an individual; JAIME GÓMEZ, p/k/a Taboo, individually and d/b/a NAWASHA NETWORKS PUBLISHING, an individual; STACY FERGUSON, p/k/a Fergie, an individual; GEORGE PAJON, JR., an individual; JOHN CURTIS, an individual; UNIVERSAL MUSIC GROUP, INC., a Delaware corporation; UMG RECORDINGS, INC., a Delaware corporation; WILL I AM MUSIC, INC., a California corporation; CHERRY LANE MUSIC PUBLISHING COMPANY, INC., a New York corporation; EL CUBANO MUSIC, INC., a California corporation; EMI BLACKWOOD MUSIC INC., a Connecticut corporation; TAB MAGNETIC, INC., a California corporation; and DOES 1 through, Defendants. Case No. CV - ODW (PLAx Honorable Otis D. Wright II, Ctrm MEMORANDUM OF CONTENTIONS OF FACT AND LAW SUBMITTED BY DEFENDANTS ADAMS, PINEDA, GOMEZ, FERGUSON, will.i.am music, inc., AND TAB MAGNETIC, INC. Trial: June, Time: :00 a.m. Place: Courtroom Dockets.Justia.com

2 1 TABLE OF CONTENTS 1. CLAIMS & DEFENSES - LOCAL RULE A. Summary Statement of Claims Plaintiff Plans to Pursue... 1 B. Elements Required to Establish Plaintiff s Claims.... C. A Brief Description of Key Evidence in Opposition to Plaintiff s Claims... D. A Summary of Affirmative Defenses Defendants Plan to Pursue... E. Elements Required to Establish Affirmative Defenses... F. Brief Description of Key Evidence In Support of Affirmative Defenses... G. Similar Statements of Third Parties... H. Anticipated Evidentiary Issues and Defendants Position on Those Issues... I. Germane Issues of Law and Defendants Position on Those Issues... i. Plaintiff Cannot Receive Multiple Awards of Statutory Damages for Each Infringement of Knee Deep... ii. Defendants Are Entitled To Deduct From Gross Revenues The Costs and Expenses Incurred In Manufacturing, Distributing, and Promoting The Album.... BIFURCATION OF ISSUES LOCAL RULE JURY TRIAL LOCAL RULE ATTORNEY S FEES LOCAL RULE ABANDONMENT OF ISSUES LOCAL RULE i-

3 1 TABLE OF AUTHORITIES Cases: Pages: A&M Records, Inc. v. Napster, Inc., F.d 0 (th Cir Coach, Inc. v. Kmart Corps., F. Supp. d (S.D.N.Y.... Columbia Pictures Television v. Krypton Broad., F.d (th Cir Cream Records, Inc. v. Jos. Schlitz Brewing Co., F.d (th Cir.... Del Forest Radio Tel. & Tel. Co. v. United States, U.S. (... ebay v. MercExchange, LLC, U.S. (0... Feltner v. Columbia Pictures Television, Inc., U.S. 0 (... 1 Field v. Google Inc., F. Supp. d 0 (D. Nev Fogerty v. Fantasy, Inc., U.S. (... Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., F.d 1 (th Cir.... Greatful Dead Prods., Inc. v. Auditory Odyssey, F.d (th Cir.... Hampton v. Paramount Pictures Corp., F.d 0 (th Cir Kamar Int l, Inc. v. Russ Berrie & Co., Inc., F.d (th Cir...., Keane Dealer Servs., Inc. v. Harts, F. Supp. (S.D.N.Y.... Kling v. Hallmark Cards Inc., F.d 0 (th Cir Los Angeles News Serv. v. Reuters Television Int l, Ltd., F.d (th Cir.... -ii-

4 1 Los Angeles News Serv. v. Tullo, F.d 1 (th Cir.... Mitchell Bros. Film Group v. Cinema Adult Theater, 0 F.d (th Cir.... Polar Bear Prods., Inc. v. Timex Corp., F.d 00 (th Cir Quinn v. City of Detroit, F. Supp. d 1 (E.D. Mich.... Roley v. New World Pictures, Ltd., F.d (th Cir.... Three Boys Music Corp. v. Bolton, F.d (th Cir Venegas-Hernandez v. Sonolux Records, 0 F.d (1st Cir Walt Disney Co. v. Powell, F.d (D.C. Cir Worldwide Church of God v. Phila. Church of God, Inc., F.d (th Cir Statutes: U.S.C U.S.C. 0(a... U.S.C. 0(c(1..., 1 U.S.C U.S.C. 0(b... U.S.C. 1(a... Rules: Federal Rule of Evidence 0... Other: Ninth Circuit Manual of Model Jury Instructions (Jan. ed....,, 1 Nimmer et al., Nimmer on Copyright...,, 1, -iii-

5 Pursuant to Local Rule -, Defendants William Adams, Allan Pineda, Jaime Gomez, Stacy Ferguson, will.i.am music, inc., and Tab Magnetic, Inc. ( Defendants submit the following Memorandum of Contentions of Fact and Law: 1. CLAIMS & DEFENSES LOCAL RULE -.1 A. Summary Statement of Claims Plaintiff Plans to Pursue. Claim 1 (copyright infringement: Plaintiff alleges Defendants have committed copyright infringement in violation of U.S.C. 1 et seq. by copying without authorization portions from Plaintiff s sound recording (Not Just Knee Deep (hereafter Knee Deep. 1 Claim (declaratory judgment: Plaintiff seeks a declaratory judgment that he is the owner of the accused works. Alternatively, Plaintiff seeks a declaratory judgment as to his percentage of ownership in the accused works. Claim (permanent injunction: Plaintiff seeks a permanent injunction prohibiting the further release, reprinting, performance, sale, or license of the accused works. -1-

6 B. Elements Required to Establish Plaintiff s Claims. Elements Required to Establish Plaintiff s Claim 1 - Copyright Infringement 1. Plaintiff s work Knee Deep is original;. Plaintiff is the author or creator of Knee Deep;. Plaintiff complied with copyright notice requirements by placing a copyright notice on publicly distributed copies of Knee Deep; and. Defendants copied original elements from Knee Deep. 1 See Ninth Circuit Manual of Model Jury Instructions Civil, Instruction Nos.. &. (Jan. ed.. In addition, if Plaintiff elects to seek statutory damages and establish that the alleged infringement was willful, Plaintiff must also prove:. Defendants engaged in acts that infringed the copyright; and. Defendants knew that those acts infringed the copyright. See Ninth Circuit Manual of Model Jury Instructions Civil, Instruction Nos.. (Jan. ed.. --

7 Elements Required to Establish Plaintiff s Claim - Declaratory Judgment 1. There is an actual controversy among Plaintiff and Defendants with respect to Plaintiff s claim of copyright infringement. See U.S.C. 1(a. Elements Required to Establish Plaintiff s Claim - Permanent Injunction 1. Plaintiff has suffered irreparable injury; 1. Remedies available at law, such as monetary damages, are inadequate to compensate for that injury;. Considering the balance of hardships between Plaintiff and Defendants, a remedy in equity is warranted; and. The public interest would not be disserved by a permanent injunction. (0. See U.S.C. 0(a; ebay v. MercExchange, LLC, U.S., 1 --

8 C. A Brief Description of Key Evidence in Opposition to Plaintiff s Claims. Claim 1 - Copyright Infringement 1 Plaintiff was a member of the funk musical group known as Funkadelic. Plaintiff produced the master sound recording Knee Deep, which was contained on Funkadelic s album UNCLE JAM WANTS YOU. The Black Eyed Peas ( BEP are a musical group composed of Defendants William Adams, Allan Pineda, Jaime Gomez, and Stacy Ferguson. In 0, BEP released an album entitled ELEPHUNK. Shut Up was one of the singles on ELEPHUNK. Plaintiff contends BEP committed copyright infringement by sampling portions of Knee Deep in certain remixes or alternative versions of Shut Up. One remix was released in 0, and the other in 0. The 0 Shut Up Remix and License. At about the same time as ELEPHUNK s release in 0, BEP released a vinyl album containing several remixes of Shut Up. One of those remixes the 0 Shut Up Remix included a sample of Plaintiff s Knee Deep. In order to obtain a license for use of Knee Deep, BEP contacted Capitol Records, which, through its wholly owned subsidiary Priority Records, had been releasing albums featuring Plaintiff s master sound recordings. Priority had entered into a license agreement with Tercer Mundo, Inc., a company that represented that it had the rights to Plaintiff s masters. That license agreement gave Priority the right to issue sampling licenses for Plaintiff s masters, such as Knee Deep. Capitol and BEP negotiated a license for use of the Knee Deep sample in the 0 Shut Up Remix. A check in the amount of $,000 was then sent to Capitol as payment of the advance on the license. --

9 1 The 0 Shut Up Remix and License. In 0, BEP, through Defendant UMG Recordings, Inc., released an album entitled THE E.N.D. At the same time, BEP sought to release a special double-disc edition of THE E.N.D., which was to be sold exclusively at Target stores. The second disc of this special Target release contained a few new songs as well as remixes of classic BEP hits, including Shut Up. That remix the 0 Shut Up Remix again used a sample of Knee Deep. The 0 Shut Up Remix and the 0 Shut Up Remix are identical, except that one of the remixes is a few seconds longer. Obtaining a license for this sample was different in 0 than it was in 0 because the ownership of Plaintiff s master recording had changed; a June, 0 court order declared Plaintiff to be the sole owner of his master sound recordings, including Knee Deep. Deborah Mannis-Gardner of DMG Clearances, Inc., a sample clearance company with an excellent reputation in the music industry, was retained to obtain a license for using Knee Deep in the 0 Shut Up Remix. Initially, Mannis-Gardner had difficulty reaching Plaintiff. Eventually, she was referred to Eban Kelly, who had been working with Clinton for over years. Mannis-Gardner faxed Kelly a proposed license, and Kelly faxed back an executed license agreement and an executed W, both containing Plaintiff s signature. The W provided for payment to Plaintiff to be made to C. Kunspyruhzy, LLC, an LLC of which Plaintiff is a member. Mannis-Gardner then sent a $1,000 advance check to C. Kunspyruhzy, LLC, as well as a check to Kelly for obtaining Plaintiff s signature. Claim - Declaratory Judgment The evidence in opposition to Plaintiff s claim for a declaratory judgment is the same as the evidence in opposition to Plaintiff s claim for copyright infringement. --

10 Claim - Permanent Injunction The evidence in opposition to Plaintiff s claim for a permanent injunction is the same as the evidence in opposition to Plaintiff s claim for copyright infringement. D. A Summary of Affirmative Defenses Defendants Plan to Pursue. Affirmative Defense (express license: Plaintiff s claims are barred by the existence of valid licenses authorizing the Defendants to use the Plaintiff s work. Affirmative Defense (statute of limitations: Plaintiff s claims are barred by the applicable statue of limitations; or, in the alternative, Plaintiff may not recover any damages incurred more than three years prior to the filing of his complaint. 1 Affirmative Defense (consent: Plaintiff s claims are barred because he consented to the allegedly wrongful conduct. Affirmative Defense (waiver: Plaintiff s claims are barred by the equitable doctrine of waiver. Affirmative Defense (acquiescence: Plaintiff s claims are barred by the equitable doctrine of acquiescence. Affirmative Defense (estoppel: Plaintiff s claims are barred by the equitable doctrine of estoppel. Affirmative Defense (laches: Plaintiff s claims are barred by the equitable doctrine of laches. --

11 Affirmative Defense (unclean hands: Plaintiff s claims are barred by the equitable doctrine of unclean hands. In addition to the affirmative defenses, should Plaintiff seek statutory damages, Defendants will seek to prove that any infringement was innocent. E. Elements Required to Establish Affirmative Defenses. Elements Required to Establish Defendants Affirmative Defense - Express License 1. Defendants obtained a valid license to use the Plaintiff s copyrighted work. 1 See Worldwide Church of God v. Phila. Church of God, Inc., F.d, (th Cir. 00. Elements Required to Establish Defendants Affirmative Defense - Statute of Limitations 1. Plaintiff s claim accrued more than three years prior to the filing of the complaint. See U.S.C. 0(b; Polar Bear Prods., Inc. v. Timex Corp., F.d 00, 0-0 (th Cir. 0; Roley v. New World Pictures, Ltd., F.d, 1 (th Cir. ; Nimmer et al., Nimmer on Copyright.0[B], -- (0; see also Los Angeles News Serv. v. Reuters Television Int l, Ltd., F.d, (th Cir.. --

12 Elements Required to Establish Defendants Affirmative Defense - Consent 1. Plaintiff engaged in conduct from which it was proper for the Defendants to infer that Plaintiff consented to their use of his copyrighted work. See Field v. Google Inc., F. Supp. d 0, 1- (D. Nev. 0; Quinn v. City of Detroit, F. Supp. d 1, (E.D. Mich. ; Keane Dealer Servs., Inc. v. Harts, F. Supp., (S.D.N.Y. ; Del Forest Radio Tel. & Tel. Co. v. United States, U.S., 1 (. Elements Required to Establish Defendants Affirmative Defense - Waiver 1 1. Plaintiff intended to surrender his rights to Knee Deep. See A&M Records, Inc. v. Napster, Inc., F.d 0, (th Cir. 01. Elements Required to Establish Defendants Affirmative Defense - Acquiescence 1. Plaintiff acquiesced in Defendants infringing acts for a sufficient period of time;. Plaintiff s acquiescence was manifested by overt acts. See Coach, Inc. v. Kmart Corps., F. Supp. d, (S.D.N.Y.. --

13 Elements Required to Establish Defendants Affirmative Defense - Estoppel 1. Plaintiff knew the facts of Defendants infringing conduct;. Plaintiff intended that Defendants act on his conduct, or Plaintiff acted in such a way that Defendants had a right to believe that Plaintiff so intended;. Defendants were ignorant of the true facts;. Defendants relied on Plaintiff s conduct to their injury. See Hampton v. Paramount Pictures Corp., F.d 0, (th Cir Elements Required to Establish Defendants Affirmative Defense - Laches 1. Plaintiff unreasonably delayed in bringing this lawsuit.. Defendants suffered prejudice as a result thereof. See Kling v. Hallmark Cards Inc., F.d 0, (th Cir

14 Elements Required to Establish Defendants Affirmative Defense - Unclean Hands 1. Plaintiff engaged in wrongful acts that, in some measure, affect the equitable relations between the parties with respect to something brought before the Court for adjudication.. Defendants were injured by the Plaintiff s wrongful acts. See Los Angeles News Serv. v. Tullo, F.d 1, (th Cir. ; Mitchell Bros. Film Group v. Cinema Adult Theater, 0 F.d, (th Cir. ; Nimmer et al., Nimmer on Copyright,.0[B], at :- (. 1 Elements Required to Establish Innocent Infringement 1. Defendant were not aware that their acts constituted infringement of Plaintiff s copyright; and. Defendants had no reason to believe that their acts constituted an infringement of Plaintiff s copyright. See Ninth Circuit Manual of Model Jury Instructions Civil, Instruction Nos.. (Jan. ed.. --

15 F. Brief Description of Key Evidence In Support of Affirmative Defenses. Affirmative Defense - Express License 1 Plaintiff contends that Defendants 0 Shut Up Remix and 0 Shut Up Remix infringe Plaintiff s copyright to Knee Deep, but both of the Shut Up Remixes were produced and sold with valid licenses to sample Plaintiff s Knee Deep. For the 0 Shut Up Remix, BEP contacted Capitol Records, which, through its wholly owned subsidiary Priority Records, had been releasing albums featuring Plaintiff s master sound recordings. Priority had entered into a license agreement with Tercer Mundo, Inc., a company that represented that it had the rights to Plaintiff s masters. That license agreement gave Priority the right to issue sampling licenses for Plaintiff s masters, such as Knee Deep. Capitol and BEP negotiated a license for use of the Knee Deep sample in the 0 Shut Up Remix. A check in the amount of $,000 was then sent to Capitol as payment of the advance on the license. For the 0 Shut Up Remix, obtaining the license was more complicated than it was in 0 because the ownership of Plaintiff s master recording had changed. A June, 0 court order declared Plaintiff to be the sole owner of his master sound recordings, including Knee Deep. Deborah Mannis-Gardner of DMG Clearances, Inc., a sample clearance company with an excellent reputation in the music industry, was retained to obtain the license. Initially, Mannis-Gardner had difficulty reaching Plaintiff. Eventually, she was referred to Eban Kelly, who had been working with Clinton for over years. Mannis-Gardner faxed Kelly a proposed license, and Kelly faxed back an executed license agreement and an executed W, both containing Plaintiff s signature. The W provided for payment to Plaintiff to be made to C. Kunspyruhzy, LLC, an LLC of which Plaintiff is a member. Mannis-Gardner then sent --

16 a $1,000 advance check to C. Kunspyruhzy, LLC, as well as a check to Kelly for obtaining Plaintiff s signature. Affirmative Defense - Statute of Limitations Almost all of the sales relating to the 0 Shut Up Remix occurred prior to December, 0, which is three years prior to the filing of the complaint. Affirmative Defense - Consent The evidence in support of this affirmative defense is the same as the evidence in opposition to Plaintiff s claim for copyright infringement and in support of Defendants affirmative defense of express license. 1 Affirmative Defense - Waiver The evidence in support of this affirmative defense is the same as the evidence in opposition to Plaintiff s claim for copyright infringement and in support of Defendants affirmative defense of express license. Affirmative Defense - Acquiescence The evidence in support of this affirmative defense is the same as the evidence in opposition to Plaintiff s claim for copyright infringement and in support of Defendants affirmative defense of express license. --

17 Affirmative Defense - Estoppel The evidence in support of this affirmative defense is the same as the evidence in opposition to Plaintiff s claim for copyright infringement and in support of Defendants affirmative defense of express license. Affirmative Defense - Laches The evidence in support of this affirmative defense is the same as the evidence in opposition to Plaintiff s claim for copyright infringement and in support of Defendants affirmative defense of express license. Affirmative Defense - Unclean Hands 1 The evidence in support of this affirmative defense is the same as the evidence in opposition to Plaintiff s claim for copyright infringement and in support of Defendants affirmative defense of express license. G. Similar Statements of Third Parties. Not applicable. H. Anticipated Evidentiary Issues and Defendants Position on Those Issues. Defendants anticipate disputes over the admissibility of two sets documents. First, Plaintiff may seek to admit certain financial documents that were provided to Plaintiff for settlement purposes only; these documents are inadmissible under Federal --

18 Rule of Evidence 0, and are also inadmissible hearsay, lack foundation, and lack authentication. Second, Plaintiff may seek to admit the declarations from himself and Eban Kelly filed in opposition to Defendants motion for partial summary judgment; these declarations are inadmissible hearsay. I. Germane Issues of Law and Defendants Position on Those Issues. i. Plaintiff Cannot Receive Multiple Awards of Statutory Damages for Each Infringement of Knee Deep. 1 At times, Plaintiff has taken the position that he is entitled to separate awards of statutory damages for each infringement of his work. He is mistaken. The law is clear that there can be only one award of statutory damages for each work that is infringed. The number of separate acts of infringement is irrelevant where all of the defendants are jointly and severally liable, as these defendants are here. There is no dispute that Plaintiff is suing for infringement of only one work: Knee Deep. The statutory damages provision of the Copyright Act provides: [T]he copyright owner may elect... an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $0 or more than $0,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work. U.S.C. 0(c(1 (emphasis added. The leading treatise confirms that if the same copyrighted work is held to have been infringed by several different infringing acts, then under the current Copyright Act, only a single minimum, and a single set of statutory damages, will be applicable --

19 1 for all infringements involved in the action with respect to any one work, for which any one infringer is liable individually. Nimmer et al., Nimmer on Copyright.0[E][][a][i] at - ( (quoting U.S.C. 0(c(1. The leading Ninth Circuit case and the law of other circuits are also in accord. [W]hen statutory damages are assessed against one defendant or a group of defendants held to be jointly and severally liable, each work infringed may form the basis of only one award, regardless of the number of separate infringements of that work. Columbia Pictures Television v. Krypton Broad., F.d, (th Cir. rev d on other grounds sub nom. Feltner v. Columbia Pictures Television, Inc., U.S. 0 (; see also Comment to Instruction No.., Ninth Circuit Manual of Model Civil Jury Instructions (Jan. ed. (citing Krypton; Venegas-Hernandez v. Sonolux Records, 0 F.d, (1st Cir. 0 ( under 0(c the total number of awards of statutory damages that a plaintiff may recover in any given action against a single defendant depends on the number of works that are infringed and... is unaffected by the number of infringements of those works. (emphasis in original; Walt Disney Co. v. Powell, F.d, (D.C. Cir. 0 ( The district court erred in assessing damages based upon six violations, mistakenly focusing on the number of infringements rather than on the number of works infringed. Both the text of the Copyright Act and its legislative history make clear that statutory damages are to be calculated according to the number of works infringed, not the number of infringements. Because Plaintiff is suing for infringement of only one work, and because Defendants liability if the jury finds that Defendants are indeed liable would be joint and several, Plaintiff can recover only one award of statutory damages against all Defendants. In particular, even if Plaintiff argued that the 0 release and the 0 release of the Shut Up Remix were separate infringements, he still would not be able to recover two separate statutory damage awards. -1-

20 ii. Defendants Are Entitled To Deduct From Gross Revenues The Costs and Expenses Incurred In Manufacturing, Distributing, and Promoting The Album. 1 To the extent that Plaintiff does not elect an award of statutory damages and carries his burden of proving each Defendants revenues, Defendants may deduct from those revenues costs and expenses incurred in manufacturing, distributing, and promoting the album. See, e.g., Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., F.d 1, 1 (th Cir. (all direct costs of production are deductible expenses; Kamar Int l, Inc. v. Russ Berrie & Co., Inc., F.d, (th Cir. ( overhead expenses deductible when shown to be of assistance in the production, distribution or sale of the infringing product ; Cream Records, Inc. v. Jos. Schlitz Brewing Co., F.d, (th Cir. (advertising expenses are properly deductible from gross revenues; Three Boys Music Corp. v. Bolton, F.d, (th Cir.00 (income taxes and management fees actually paid on the infringing profits are properly deductible for non-willful infringers.. BIFURCATION OF ISSUES LOCAL RULE.-. Defendants do not request bifurcation of any issues.. JURY TRIAL LOCAL RULE.-. Plaintiff s Claim 1 (copyright infringement is triable to a jury, and Plaintiff timely demanded a jury trial. Plaintiff s Claim (for a declaratory judgment and Claim (for a permanent injunction are triable to the Court. --

21 Defendants Affirmative Defense (license, Affirmative Defense (statute of limitations, Affirmative Defense (consent are triable to a jury, and Defendants timely demanded a jury trial. Defendants Affirmative Defense (waiver, Affirmative Defense (acquiescence, Affirmative Defense (estoppel, Affirmative Defense (laches, Affirmative Defense (unclean hands are triable to the Court.. ATTORNEY S FEES LOCAL RULE.-. 1 The Copyright Act authorizes an award of attorney s fees to the prevailing party. U.S.C. 0. [A]ttorney s fees are to be awarded to the prevailing parties only as a matter of the court s discretion, and [p]revailing plaintiffs and prevailing defendants are to be treated alike. Fogerty v. Fantasy, Inc., U.S., (. [A]ttorney s fees generally are awarded only where there is some element of moral blame against the losing party. Nimmer et al., Nimmer on Copyright,.[D][1], p. :. (; see also id. at.[d][][a], pp. :-. As a general rule, courts do not award attorney s fees for non-willful infringement. See, e.g., Kamar Int l, Inc. v. Russ Berrie & Co., Inc., F.d, 1 (th Cir. ( The district court s finding that Russ Berrie did not, in the broader sense of the term, willfully infringe Kamar s copyrights leads us to conclude that the district court did not abuse its discretion... in not awarding attorneys fees to Kamar.... ; Greatful Dead Prods., Inc. v. Auditory Odyssey, F.d (th Cir. (no abuse of discretion where district court denied fees to plaintiff who established liability on summary judgment but failed to prove willfulness at trial (unpublished mem. opinion. If the jury finds that Defendants obtained valid licenses to use the Plaintiff s work, then they will have rejected Plaintiff s contention that his signature is a --

22 forgery and that he never authorized anyone to sign a license on his behalf. This finding would be a legitimate basis for finding that Plaintiff pursued this lawsuit in bad faith, entitling Defendants to an award of attorney s fees against Plaintiff. Conversely, if Plaintiff convinces the jury that he never signed the licenses or authorized anyone to sign the licenses, but fails to convince the jury that the Defendants infringed Plaintiff s copyright willfully, then it is unlikely that Plaintiff will be entitled to an award of attorney s fees.. ABANDONMENT OF ISSUES LOCAL RULE.-. Defendants have not abandoned any pleaded affirmative defenses, and are not aware that Plaintiff has abandoned any of his claims. 1 Dated: April 0, Respectfully submitted, GRODSKY & OLECKI LLP Allen B. Grodsky John Metzidis By: /s/ Allen B. Grodsky Allen B. Grodsky Attorneys for Defendants Adams, Pineda, Gomez, Ferguson, will.i.am music, inc. and Tab Magnetic, Inc. --